Abandonment of employment occurs when an employee leaves their employment without any intention of coming back to work.
In most cases the employee is absent from work without explanation and without the employer’s consent or knowledge.
If an employee abandons his or her employment, the law regards this as the employee repudiating their contract of employment. That is, the employee, either through their words or conduct, has indicated that they do not intend to be bound by the employment contract any longer.
If an employee abandons his/her employment, the employer has two options:
• accept the employee’s repudiation of the contact. Acceptance of the employee’s abandonment has the effect of bringing the employment contract to an end.
• choose to do nothing and the contract of employment will continue. However, this option is usually not advisable as it may be to the detriment of the employer.
An employer wishing to accept their employee’s abandonment must take appropriate steps to act on the termination of the employment relationship (see Bienias v Iplex Pipelines Australia Pty). Before an employer can bring the employment to an end, it should take the following steps to confirm that the employee is absent without:
• explanation – the employer has no knowledge of the reason for the absence
• authorisation – no manager, supervisor or other person has permitted the absence
• any intention by the employee to resume employment; and
• a satisfactory reason.
In order to minimise the risk of an unfair dismissal or general protections claim, it’s advised that the employer follow the following steps to confirm abandonment of employment:
Step one
Establish that the employee’s absence has not been authorised by any manager or any other person within the business.
Step two
Contact the employee as soon as possible to obtain an explanation of the absence and determine if the employee plans to return to work. The employer should contact the employee by phone (not by SMS), and if no response is received within a specified period time, the employer should contact the employee’s nominated next of kin or emergency contact.
It is important to note that if the employer is aware of the employee’s whereabouts and that the employee is not contactable (e.g. they’re in the Australian outback where no reception is available, or overseas), then it may not constitute abandonment of employment.
If an employer has concerns about the employee’s welfare and the family member or next of kin can’t be contacted, an employer may consider it appropriate to inform the Police.
Step three
Unsuccessful attempts to contact the employee should be documented by the employer. Further, a letter should be issued by the employer and sent via registered mail to the employee’s last known address. It is recommended that a copy of the letter be kept by the employer along with evidence of the postage of the letter.
The letter should include:
• the facts which suggest an abandonment of employment and the last date on which the employee attended work
• a requirement to immediately notify the employer of the reason for the absence and the employee’s intentions regarding the return to work, noting who they are to contact (name and phone number)
• confirmation that if notification is not received from the employee within a reasonable period (with a specification of the date in the correspondence to the employee) or if the employee’s reasons are unacceptable; the employer will conclude that the employee has abandoned the position of employment and the contract will be treated as being at an end.
Employers need to consider the amount of time the letter will take to arrive at the employee’s last known address when noting the time frame for the employee to respond. i.e. two days may not be sufficient if it will take three days for the letter to arrive.
Step four
If the employer has not heard from the employee by the designated time specified in the letter, the employer should then send out a second letter by registered post reiterating the details from the original letter and further reiterating that:
• the employee or a representative of the employee has failed to contact the employer to explain the absence by the required date as specified
• the employee must immediately explain the absence and state their intentions of returning to work
• if notification is not received within the period stated, or if the reasons are not considered acceptable, it will be determined that the employee has abandoned their position and the employment relationship is terminated.
A copy of the original letter should be included with the second letter so there is no doubt as to what was expected from the employee.
Step five
If no reply is forthcoming within the specified period, the employer should confirm the employment relationship has ended through the employee’s abandonment. If the employer fails to do this, the contract remains on foot and the employee may continue to accrue entitlements. A third and final letter should be sent that accepts the employee’s repudiation of the contract, and it should outline the:
- circumstances constituting the apparent abandonment
- date that the repudiation was accepted
- details of any termination payments and how these will be paid to the employee.
Note: Notice is still required to be given but will not have to be paid as the employee isn’t working the period out. All accrued untaken annual leave will need to be paid to the employee, as well as any accrued untaken long service leave.
Sample letters for each of the above steps are contained in CCIWA’s Employment Forms Guide and may be used by employers when executing the abandonment or employment process. CCIWA recommends that employers seek specific advice before taking any action to minimise risks.
The Guide also includes standard, ready-to-use employment forms for just about every facet of managing staff. Each form comes with a set of guidance notes explaining its purpose and application.
Employers requiring further information about abandonment of employment or the Employment Forms Guide should contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660, email [email protected] or visit CCIWA’s website at www.cciwa.com.
